Small Claims Settlement Conferences (20:XI)

Settlement conferences are held in all court registries except for Vancouver (Robson Square). Settlement conferences are mandatory for all cases except motor vehicle accident cases where only liability for property damage is disputed, or if rule 7.4, 7.5, 9.1 or 9.2 applies to the claim (Rule 7(2)).

A. Who Must Attend

The registry will serve the parties by mail with a Notice of Settlement Conference (Form 6) at least 14 days in advance (Rule 7(3)).

All parties, with or without legal representation, must attend the settlement conference, although there is a limited exception for certain motor vehicle claims (Rule 7(4)). If a party is not an individual (e.g., a company), someone who has authority to settle the claim for the company must attend. (See Kamloops Dental Centre v Mcmillan, 1996 CanLII 377 (BCSC)). If a party sends a lawyer or articled student and does not attend personally or send a company representative, that party will be deemed to have not attended the settlement conference. A party may appear by telephone if an application is made to and approved by the Registrar prior to the date set for the conference (Rule 16(2)(c.1)). If a party does not attend or does not have full authority to settle, the judge can dismiss a claim, grant a payment order, or make any other appropriate order (Rules 7(17)). If a party attends but is unprepared, a judge may order the unprepared party to pay the other party’s reasonable costs (Rules 7(6) and 20(6)).

Witnesses cannot attend except in unusual and exceptional cases. A witness who does attend the settlement conference will usually be asked to wait outside.

B. What to Bring

Each party must bring to a settlement conference all relevant documents and reports whether the party intends to use them at trial or not (Rule 7(5)). Documents include any contracts, invoices, bills of sale, business records, photographs, and summaries of what each witness will say in court (“will-say” statements).

Each party should prepare a brief chronological summary of its case and support it with evidence. Claimants should bring more than one written estimate or quote, if there is a large sum of money involved.

If the claim is for personal injury, the claimant must file and serve a Form 7 certificate of readiness and required records (Rules 7(9)-(13)) before a settlement conference will be scheduled. There can be consequences for failing to file the certificate of readiness on time. (See Yewchak v Cleland, 2002 BCPC 200 (CanLII); Irving v Irving, 1982 CanLII 475 (BC CA); Busse v Robinson Morelli Chertkow, 1999 BCCA 313).

C. What May Happen

A settlement conference is scheduled for 30 to 60 minutes before a judge in a conference room at the courthouse. The judge at the settlement/trial conference will not be the judge at trial, if a trial is necessary. The parties will sit at a table with the judge. The judge will say a few words and ask each party to give a brief summary of their case. The judge may then lead both the claimant and defendant into a discussion on what, if anything, the parties can agree on. If the parties agree on the final result, the judge will make the order. However, the parties may agree on some issues and leave issues in dispute to be resolved at trial. The judge will assess how much time is required for trial.

A judge at a settlement conference may make any order for the just, speedy, and inexpensive resolution of the claim (Rule 7(14)). This includes mediating and making orders regarding admissibility of evidence, inspections of evidence, or production of evidence to the other party. The judge may also dismiss a claim that discloses no triable issue, is without reasonable grounds, is frivolous, or is an abuse of the court’s process. (See Rule 7(14)((i); Belanger v AT&T Canada Inc., [1994] BCJ No. 2792; Cohen v Kirkpatrick, 1993 CanLII 2059 (BCSC); and Artisan FloorCo. v Lam, 1993 CanLII 2138 (BCSC)). Examples include claims that are outside the court’s jurisdiction, where the claimant presents no evidence, or where the limitation period at the date of filing the Notice of Claim had expired. A judge cannot dismiss a case at the settlement conference on the basis of issues relating to the credibility of witnesses or evidence.

A judge may also order that multiple claims be heard at the same time, or consolidated into one claim. (See Schab v Active Bailiff Service Ltd., [1993] BCJ No. 2936). The distinction is important. Claims heard at the same time may each individually be awarded up to $25,000, while claims which are consolidated into one claim may only be awarded $25,000 combined.

Any agreement valid under contract law can result in a binding settlement. Agreements entered into by lawyers with their client's knowledge and consent are binding but can be set aside in some circumstances. (See Harvey v British Columbia Corps of Commissionaires, 2002 BCPC 69 (CanLII)). If all claims are not settled, the parties should acquire a record of the settlement conference, which may outline all of the issues in the case, all admissions, the number of witnesses, the anticipated length of trial, and anything that must be disclosed.

NOTE: If the settlement pertains to an action against a lawyer for which a complaint has been filed with the Law Society, a party cannot use complaint withdrawal as a bargaining technique; it is improper during settlement negotiations to offer to withdraw a complaint against a lawyer as a part of the settlement. (See Gord Hill Log Homes Ltd. v Cancedar Log Homes, 2006 BCPC 480 (CanLII)).

D. Disclosure

Trial by ambush is not permitted. Each party is entitled to know the evidence for and against its position. If the parties cannot reach a settlement, the focus will turn to trial preparation. The judge at a settlement conference has the power to order production of documents and evidence. Each party should attend the settlement conference with a list of documents and evidence that is believed to be in the possession of the other party.

A judge will order the parties to exchange copies of all documents or allow for their inspection before trial. Disclosure must be timely. (See Golden Capital Securities Ltd. v Holmes, 2002 BCSC 516 (CanLII)). These documents should be compiled in a tabbed binder for easy reference at trial.

Each party must be prepared to disclose the name of each witness that party intends to call, indicate what evidence each witness will give, and provide a time estimate. If expert evidence will be used, it is helpful if a written report (or at least a draft copy) is available for the settlement conference. If an expert report is not available, parties will be ordered to exchange those reports prior to trial. There is a minimum deadline of 30 days before trial (Rules 10(3) and (4)) however the judge at the settlement conference can be asked to change the time limits.

If a party does not comply with a disclosure order, a judge may adjourn the trial, the settlement conference, or both, order that party to pay expenses, order the trial to proceed without allowing that evidence to be used, or dismiss the action.

NOTE: For case law relating to the disclosure of medical documents and ethical obligations of physicians to their patients see Halliday v McCulloch, 1986 CanLII 1004 (BC CA), Hope v Brown, [1990] BCJ No. 2586, Davies v Milne, 1999 CanLII 6654 (BC SC), and Cunningham v Slubowski,2003 BCSC 1854 (CanLII).

NOTE: For case law on obtaining disclosure from the Crown (e.g., from a related criminal case) in a civil case see Huang (litigation guardian of) v Sadler, [2006] BCJ No. 758 and Wong v Antunes, [2008] BCSC 1739 (CanLII). For case law pertaining to the admissibility of evidence obtained through electronic surveillance (e.g., recording telephone conversations and videotaping) and whether it will be considered a violation of the Privacy Act, RSBC 1996, c 373 see Watts v Klaemt, 2007 BCSC 662 (CanLII) and Cam v Hood, 2006 BCSC 842 (CanLII). For case law on obtaining evidence from third parties see Lewis v Frye, 2007 BCSC 89 (CanLII).

A judge may also order the exchange of all case law prior to the trial date.

Parties should consider writing to the other side after the settlement conference to confirm the deadline, the documents required, and remedies that will be pursued if there is no disclosure. When sending documents, it is important to include a list or outline of what material is enclosed.

E. Enforcing a Settlement Agreement238

If an agreement reached at a settlement conference includes payment, and if a party does not comply, the agreement can be cancelled. After filing an affidavit describing the non-compliance, the person entitled to payment may file a payment order for either the amount agreed to by the parties as the default amount and noted on the record as the default amount endorsed by the judge at the settlement conference or the full amount of the original claim if there was no default amount endorsed by the judge.